Citifinancial Mtge. Co., Inc.

v Williams (2011 NY Slip Op 51240(U))

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Citifinancial Mtge. Co., Inc. v Williams 2011 NY Slip Op 51240(U) Decided on July 6, 2011 Supreme Court, Kings County Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2011

Supreme Court, Kings County

Citifinancial Mortgage Company, Inc., Plaintiff, against

Nigel Williams, et al., Defendants.

1946/09

Plaintiff Peter T. Roach and Associates Jericho NY K & L Gates LLP NY NY Defendant

Auciello Law Group, PC Brooklyn NY

Arthur M. Schack, J.

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The Court, on August 23, 2010, in this foreclosure action, granted to plaintiff,

CITIFINANCIAL MORTGAGE COMPANY, INC. (CITI), an order of reference for the premises located at 1170 Halsey Street, Brooklyn, New York (Block 3411, Lot 20, County

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Citifinancial Mtge. Co., Inc. v Williams (2011 NY Slip Op 51240(U))

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of Kings). Then, on May 20, 2011, plaintiff CITI moved to vacate the August 23, 2010 order of reference. The motion is scheduled for oral argument on August 15,

An application to vacate the Order of Reference Appointing

Referee to Compute was inadvertently submitted to his Court.

Please take this letter as our formal request to vacate the Order

of Reference Appointing Referee to Compute, without prejudice. A motion to discontinue the action and cancel the notice of

pendency of record will be submitted shortly. Thank you for your

No reason is given by plaintiff's co-counsel for the request to vacate the August 23, 2010 order of reference. Moreover, despite the thanks "for your courtesies" at the bottom of the letter addressed to my chambers and to the attention of Mr. Bratt, the letter discourteously states, on the letterhead of Peter T. Roach & Associates, P.C., in boldface and capital letters, "THIS COMMUNICATION IS FROM A DEBT COLLECTOR AND IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." The Court would like to know what debt either Mr. Bratt or myself owes to Peter T. Roach & Associates, P.C. or CITI? Mr. Bratt and I do not owe any debt to Peter T. Roach & Associates, P.C. or CITI. This boldfaced and capitalized statement borders upon frivolous conduct, in violation of 22 NYCRR 130-1.1. Was it made to cause annoyance or alarm to the Court or Mr. Bratt? Was it made to waste judicial resources? Rather than answer the above rhetorical questions, counsel for plaintiff is directed never to place such a foolish statement in a letter to this Court. If this occurs again, the firm of Peter T. Roach & Associates, P.C. is on notice that this Court will have the firm appear to explain why the firm should not be sanctioned for frivolous conduct. With respect to the request of plaintiff's counsel to vacate the order of reference, the Court grants the request to vacate the August 23, 2010 order of reference. Further, the Court, to prevent the waste of judicial resources, for procedural reasons and not upon the merits, dismisses the instant foreclosure action with prejudice.

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Real Property Actions and Proceedings Law (RPAPL) 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant's admission of mortgage payment arrears, to appoint a referee "to compute the amount due to the plaintiff." In the

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2011.Yesterday, July 5, 2011, the Court received from plaintiff's co-counsel, Peter T. Roach & Associates, P.C., a fax of [*2]a letter, dated July 5, 2011, addressed to my chambers and to the attention of my principal law clerk, Ronald D. Bratt, Esq. The letter states:

Citifinancial Mtge. Co., Inc. v Williams (2011 NY Slip Op 51240(U))

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instant action, the Court appointed a referee to compute. Subsequently, plaintiff CITI requested that the Court vacate the order of reference, without prejudice. The Court grants

resources. Continuing the instant action without moving for a judgment of foreclosure and sale is the judicial equivalent of a "timeout," and granting a "timeout" to plaintiff CITI to move to discontinue without prejudice is a waste of judicial resources. Therefore, the instant action, for these procedural reasons, is dismissed with prejudice.

Moreover, the dismissal of the instant foreclosure action requires the cancellation of the

was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit," and, at 320, that "the statutory scheme permits a party to effectively retard the alienability of real

CPLR 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a

to section 551. [emphasis added] The plain meaning of the word "abated," as used in CPLR 6514 (a) is the ending of an action. "Abatement" is defined as "the act of eliminating or nullifying." (Black's Law Dictionary 3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d 11.1)." (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the "[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321;

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final judgment against the plaintiff has not been stayed pursuant

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The Court,upon motion of any person aggrieved and upon such

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property without any prior judicial review."

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possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property." The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that "[t]he purpose of the doctrine

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[*3]notice of pendency. CPLR 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that "would affect the title to, or the

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plaintiff's request to vacate the order of reference. However, to allow the instant action to continue without seeking the ultimate purpose of a foreclosure action, to obtain a judgment of foreclosure and sale, without any valid reason, is a mockery and waste of judicial

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Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac 336 [4th ed])." Thus, the dismissal of the instant complaint must result in the mandatory

Conclusion Accordingly, it is

ORDERED, that the instant action, Index Number 1946/09, is dismissed with prejudice; and it is further ORDERED, that the notice of pendency in the instant action, filed with the Kings County Clerk on January 27, 2009, by plaintiff, CITIFINANCIAL MORTGAGE COMPANY, INC., to foreclose on real property located at 1170 Halsey Street, Brooklyn, New York (Block 3411, Lot 20, County of Kings), is cancelled and discharged; and it is further ORDERED, that Peter T. Roach & Associates, P.C. is on notice that if any of its attorneys or staff sends any communication to this Court stating "THIS COMMUNICATION IS [*4]FROM A DEBT COLLECTOR AND IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE," or something similar, it may be subject to civil contempt and/or sanctions for frivolous conduct, pursuant to 22 NYCRR 130-1.1. This constitutes the Decision and Order of the Court.

________________________________HON. ARTHUR M. SCHACK

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ORDERED, that the request of plaintiff, CITIFINANCIAL MORTGAGE COMPANY, INC., to vacate the order of reference issued by this Court on August 23, 2010, for the premises located at 1170 Halsey Street, Brooklyn, New York (Block 3411, Lot 20, County of Kings), is granted; and it is further

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cancellation of CITI's notice of pendency against the subject property "in the exercise of the inherent power of the court."

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